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In the Matter of
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STATE OF MAINE –
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File No. 0005722810
MSCOMMNET PROJECT
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Request For Waiver of Sections 90.20(d)(13) and
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(45) of the Commission’s Rules
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ORDER

Adopted: November 15, 2013

Released: November 15, 2013

By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION

1. The State of Maine (Maine or the State) filed an application and waiver request seeking
authority to operate Public Safety Pool frequency 157.450 MHz at its Huntoon Hill site as part of its VHF statewide public safety radio system.1 The Commission’s rules restrict operations on frequency 157.450 MHz to one-way paging communications to mobile receivers, and limit the maximum transmitter output power (TPO) to 30 watts.2 Maine seeks a waiver to operate on this frequency in the voice mode with a maximum TPO of 110 watts.3 For the reasons detailed below, we grant Maine’s waiver request.4

II.

BACKGROUND

2. Maine is implementing a new narrowband (12.5 kHz channel bandwidth) VHF Project 25
trunked radio system.5 In its ongoing effort to achieve statewide operability and interoperability on this system, Maine states that it “conducted a thorough search of Public Safety Pool frequencies for a site located at Huntoon Hill, which is needed to fill in system coverage along a portion of the Maine coastline,” and concluded that 157.450 MHz is the only Public Safety Pool frequency available at this location.6 Maine submits that there are no incumbents in Maine, other than the State itself, licensed to

1 See Request for Waiver, dated April 1, 2013 (Waiver Request), attached to FCC File No. 0005722810 (filed Apr. 5, 2013).
2 47 C.F.R. §§ 90.20(d)(13) and (45). 3 Waiver Request at 3-4. In its application, Maine requests an output power of 110 watts, but its waiver request specified 85 watts. In evaluating Maine’s waiver request, we rely on the 110 watt transmitter power output requested in Maine’s application.
4 Maine also seeks a waiver of Section 90.20(d)(30) which limits operations on frequency 157.450 MHz to a maximum bandwidth of 25 kHz. Since Maine proposes to operate with a bandwidth less than 25 kHz no waiver of this rule is needed. See Waiver Request at 1, 4.
5 Id. at 1.6 Id. at 3.

Federal Communications Commission

DA 13-2186

operate on frequency 157.450 MHz.7 Maine argues, however, that its statewide radio system is a “state-of-the-art” two-way voice communications system that is incompatible with the limitations, supra, that the Commission has imposed on the use of this frequency.8 Maine thus seeks waiver of Sections 90.20(d)(13) and (45) of the Commission’s rules to incorporate the channel into its statewide network.9
3. Maine states that, while frequency 157.450 MHz is designated as a one-way paging channel,
it should be allowed to operate voice communications on the channel because “there is no longer a demand for public safety paging in Maine.”10 Maine notes that the Commission has previously granted waivers to allow public safety use of frequencies limited to paging-related operations for voice communications.11 Maine seeks to pair frequency 157.450 MHz with frequency 161.340 MHz, which it obtained pursuant to waiver.12
4. Furthermore, Maine notes that the Commission has previously granted it waivers to “facilitate
the modernization of the State’s sub-standard radio system” and acknowledged the State’s limited frequency options outside the VHF band due to its difficult terrain and proximity to Canada.13 Maine contends that a waiver of Sections 90.20(d)(13) and (45) would be in the public interest because “it would allow for Maine’s new statewide interoperability public safety communications network to extend into an otherwise underserved coastal area” without undermining the underlying purpose of the Commission’s rules.14 Maine notes that no incumbents operate on this channel within the state other than Maine itself, and that the State “obviously concurs with this new application.”15 Finally, Maine adds that it “has no reasonable alternative, as no other Public Safety Pool channel is available for its use at the site in question.”16

5. On July 9, 2013, the Public Safety and Homeland Security Bureau (Bureau) released a PublicNotice seeking comment on Maine’s request for a waiver of Sections 90.20(d)(13) and (45).17 In particular, the Bureau sought comment from any parties who would be impacted by Maine’s voice operation on this frequency.18
6. The three commenting parties who responded to the Public Notice all support Maine’s waiver
request.19 The State of Wisconsin Department of Transportation (Wisconsin) contends that due to the power limitations imposed by the rules, frequency 157.450 MHz is typically underutilized, and that Maine’s proposed use will put this frequency to valuable use without harm to others.20 The Commonwealth of Virginia Department of State Police (Virginia) supports Maine’s waiver request and urges the Commission to “liberally permit use of all of Part 90 paging frequencies for land mobile radio use by statewide public safety entities.”21 Additionally, Virginia suggests that the Commission consider revising its rules to make all Part 90 paging frequencies available for public safety land mobile use, with a priority for statewide public safety entities, and with related modification to the bandwidth and power limitations.22 The Enterprise Wireless Alliance supports Maine’s request for “repurposing” an unused public safety pool frequency through waiver as opposed to reallocating spectrum through rule making.23

III.

DISCUSSION

7. Section 1.925 states that to obtain a waiver of the Commission’s rules, a petitioner must
demonstrate either that: (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the present case, and that a grant of the waiver would be in the public interest;24 or (ii) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative.25 An applicant seeking a waiver faces a high hurdle and must plead with particularity the facts and circumstances that warrant a waiver.26

8. The Commission allocated an exclusive frequency, 157.450 MHz, for limited area, hospital
one-way paging systems.27 The Commission allocated this channel because paging communications had been demonstrated to be disruptive to operations on regular two-way voice channels in the VHF band.28 The Commission envisioned that medical paging operations that were conducted on regular VHF two-way voice channels in the Special Emergency Radio Service would shift to frequency 157.450 MHz if harmful interference to voice operations occurred.29 To limit the possibility of adjacent channel interference, the Commission limited paging operations to 30 watts TPO.30 Neither Maine nor the commenters provide evidence that the existing limitations no longer serve their primary purpose i.e. to prevent interference to two-way voice operations in the VHF band.
9. Applying the second prong of the waiver standard, however, we find that Maine has
demonstrated that waiver of Sections 90.20(d)(13) and (45) of the Commission's Rules is warranted based on the specific circumstances presented. As we stated previously in granting Maine waivers to use Part 90 Industrial/Business and Part 22 two-way paging frequencies in implementing its statewide system: “we agree that there are insufficient Public Safety Pool frequencies available in the VHF band for Maine's statewide radio system [footnote omitted]. We acknowledge that Maine's terrain, with its heavily forested areas, is difficult to penetrate for adequate radio coverage using frequencies above the VHF band [footnote omitted].”31
10. We believe those conditions continue to limit Maine’s spectrum options. Additionally,
Maine is currently the only active licensee on frequency 157.450 MHz in the State. Maine seeks to pair this frequency with another frequency that it obtained pursuant to a waiver. Further, we reviewed Maine’s instant application and find that Maine’s proposal to operate at the Huntoon Hill site with 110 watts TPO and 141.3 watts ERP would result in only a de minimis extension of its currently licensed interference contour on this frequency.32 Thus, Maine’s proposal to operate in excess of the TPO limits at the Huntoon Hill site will have minimal impact on the ability of potential applicants to operate on this frequency in the paging mode.33
11. Based on the specific factual circumstances of the instant case, we find that Maine has no
reasonable alternative but to repurpose paging frequency 157.450 MHz at the Huntoon Hill site and to integrate it into its MSCommNet system. Furthermore, we find it in the public interest for Maine to fill in

coverage in an otherwise unserved coastal area and, “thereby, to facilitate interoperability with federal, state and local public safety officials using predominantly VHF communications systems [footnote omitted].”34
12. Finally, Virginia’s proposals fall outside the scope of this proceeding. Should Virginia seek
to repurpose all Part 90 paging spectrum to expand statewide systems, it may file a petition for rule making pursuant to Section 1.401 of the Commission’s Rules.35

IV.

ORDERING CLAUSES

13. Accordingly, IT IS ORDERED pursuant to Section 1.925 of the Commission’s rules, 47
C.F.R. § 1.925, that the waiver request filed by the State of Maine – MSCommNet Project IS GRANTED.
14. IT IS FURTHER ORDERED, that application, File No. 0005722810, SHALL BE
GRANTED accordingly .
15. This action is taken under delegated authority pursuant to Sections 0.191, and 0.392 of the
Commission’s rules, 47 C.F.R. §§ 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm Deputy Chief, Policy and Licensing Division Public Safety and Homeland Security Bureau

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